Opinion
Case No. 02-40064-JAR.
July 16, 2004
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTIONS FOR SUPPRESSION AND IMMUNITY FOR DEFENSE WITNESSES
This matter is before the Court on defendant Kevin Jones's Motion to Suppress (Doc. 16) and Motion for Immunity for Defense Witnesses (Doc. 31). The Court held an evidentiary hearing on the suppression motion on June 22, 2004. At the conclusion of the hearing, the Court permitted defendant additional time to brief the immunity issue, at which time the Court would take the matters under advisement. Defendant subsequently filed his brief regarding immunity on June 24, 2004, and supplemented his suppression motion on July 6, 2004. The Court has reviewed the evidence and pleadings and is ready to rule. For the reasons set forth below, both of defendant's motions are denied.
Background
On January 4, 2002, officers with the Lawrence Police Department executed a search warrant at an apartment in Lawrence, Kansas. The search warrant was based on an affidavit prepared by Officer Darren Othick, the affiant. The affidavit, signed on January 2, 2002, related that the apartment was a locus of drug-dealing, which had occurred as recently as January 1, 2002, when a confidential informant ("CI") reported that a relative had purchased an Ecstasy pill at the apartment. The search warrant sought any 1) MDMA (Ecstasy) pills, 2) ledgers or documents recording the sale, delivery or monies owed for drug debts, 3) documents tending to establish residency of the occupants, 4) drug paraphernalia, and 5) proceeds of drug sales.
The search warrant was signed by a magistrate judge at 4:05 p.m. on January 3, 2002, and executed at 4:30 p.m. on January 4, 2002. After forcibly entering the apartment through the front door, the officers encountered three individuals. In the first floor north bedroom, the officers made contact with a man whom they handcuffed. In the second floor bathroom, the officers encountered another male who was attempting to dispose of approximately one-half pound of marijuana in the toilet. In the second floor south bedroom, the officers encountered defendant, who was handcuffed and searched. In that bedroom, the officers found a large wad of twenty-dollar bills, three baggies containing a total of 7.8 grams of cocaine base and 21 Ecstasy pills. A Ruger handgun and ammunition were also found on a closet shelf.
Analysis
Defendant moves to suppress the search on three grounds: 1) the search warrant was not supported by probable cause; 2) the affiant who authored the probable cause affidavit relied heavily on an unnamed informant but omitted critical negative information about the informant's unreliability, in violation of Franks v. Delaware; and 3) the execution of the search warrant was unreasonable because the officers did not first knock, announce and wait a reasonable period of time before forcibly entering the defendant's residence. The Court will address each issue in turn.
438 U.S. 154 (1978).
1. Was the search warrant supported by probable cause?
Defendant asserts that the search warrant affidavit failed to provide probable cause to search the apartment. He argues that the information in the affidavit 1) did not establish a nexus between the items sought and the residence; 2) was stale; and 3) included double-hearsay from a confidential informant whose reliability the defendant challenges.
Reviewing courts give "great deference" to the issuing magistrate's determination of probable cause. The court's duty is to ensure that the issuing magistrate had a "substantial basis" for concluding that the affidavit in support of the search warrant established probable cause. "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." The test is whether the facts presented in the affidavit would "warrant a man of reasonable caution" to believe that evidence of a crime will be found at the place to be searched. Thus, only a probability and not a prima facie showing is the standard for probable cause. Nexus
United States v. Finnigin, 113 F.3d 1182, 1185 (10th Cir. 1997).
United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999) (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)).
Id. at 1182.
Id. at 1182 (citing Texas v. Brown, 460 U.S. 730, 742 (1983)).
Id. at 1182 (citing Gates, 462 U.S. at 235).
Probable cause to search a location does not depend on direct evidence or personal knowledge that evidence or contraband is located there. The affidavit need not aver that criminal activity actually occurred in that location. It is enough when the affidavit establishes a "nexus between the objects to be seized and the place to be searched" from which "a person of reasonable caution" would "believe that the articles sought would be found" there. This nexus "may be established through . . . normal inferences as to where the articles sought would be located." "[C]ourts often rely on the opinion of police officers as to where contraband may be kept."
United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997), cert. denied, 523 U.S. 1079 (1998).
United States v. Reno, 196 F. Supp.2d 1150, 1158 (D. Kan. 2002) (citing United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 874 (10th Cir. 1992)).
Hargus, 128 F.3d at 1362.
Reno, 196 F. Supp.2d at 1158 (quoting United States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982)).
Id. (quoting $149,442.43 in U.S. Currency, 965 F.2d at 874 (citations omitted)).
The Tenth Circuit has emphasized that "[p]robable cause to search a person's residence does not arise based solely on probable cause that the person is guilty of a crime. Instead, there must be additional evidence linking the person's home to the suspected criminal activity." The Circuit has declined to join other circuits that have held, in cases involving drug traffickers, that "observations of illegal activity outside of the home can provide probable cause for the issuance of a search warrant for a suspect's house, even in the absence of an allegation that any illegal activity occurred in the home itself."
United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998).
Nolan, 199 F.3d at 1183, citing cases.
Defendant focuses on what he characterizes as the "primary object" of the search, Ecstacy. He argues that the allegations in the affidavit that Red sold Ecstasy at the apartment two months prior, and had since moved out, cannot provide probable cause. However, the warrant also sought several other items, including ledgers or documents recording the sale, delivery or monies owed for drug debts, documents tending to establish residence of the occupants, drug paraphernalia and proceeds of drug sales.
The Court finds that the information provided in the affidavit establishes a connection between the apartment and drug-trafficking, therefore supporting the inference that one or more of the items sought in the affidavit would be found in the apartment. The affidavit relates that the former occupants of the apartment had been kicked out so the new occupants, including others besides Red known to the CI as Shawn, "J.R." and "G," "could sell crack"; the apartment manager reported that the frequency of vehicle and pedestrian traffic had increased since the new occupants moved in and that she suspected they "were doing deals"; and the CI reported that a relative had obtained Ecstacy at the apartment the weekend prior to the search warrant. This information indicated that persons who were in the business of drug trafficking were living at the apartment; that increased frequency of vehicle and pedestrian traffic indicated activity consistent with drug sales around the apartment; and that drug trafficking activity had recently occurred at the apartment. It was thus reasonable for the magistrate to believe that drug-trafficking records or profits would be found at the apartment, and defendant's nexus challenge fails.
Staleness
Defendant also argues that the information in the affidavit is stale, Red's Ecstacy possession having been approximately two months before the search warrant was sought. The government counters that the affidavit relates information concerning the drug trafficking emanating from the apartment on December 29, 2001 through January 1, 2002, and that the warrant was issued on January 3, 2002. Defendant acknowledges that the determination of timeliness "depends not merely on the passage of time but on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized. In this case, the affidavit sets forth that the white male occupants had been "kicked out" so the new black male occupants could sell crack; the apartment manager's observations of increased frequency of pedestrian and vehicle traffic coming from the apartment; and that the CI's relative had obtained Ecstacy from the apartment sometime during the week of December 30 to January 1. Accordingly, there was evidence that drug trafficking activities out of the apartment were ongoing, and it was reasonable to infer that evidence of drug dealing could still be found. Where the offense in question is ongoing and continuing, the passage of time is not critically important. Defendant's staleness argument is without merit.
U.S. v. Smith, 63 F.3d 956, 969 (10th Cir. 1995), vacated on other grounds by 516 U.S. 1105 (1996) (citing United States v. Snow, 919 F.2d 1458, 1460 (10th Cir. 1990)).
U.S. v. Mathis, 357 F.3d 1200, 1207 (10th Cir. 2004).
Double-hearsay
Defendant argues that the recitation in paragraph 11 of the affidavit is flawed because it is based on uncorroborated double-hearsay, namely information provided by the CI's unnamed relative to the CI.
As defendant concedes, hearsay evidence may form the basis for a probable cause determination. Moreover, multiple layers of hearsay may support a finding of probable cause for a search warrant. When the affidavit is based on information obtained from a confidential informant, the basis of the informant's knowledge, as well as his reliability, are important factors in deciding whether information in an affidavit supports a finding of probable cause for a search. When judging information provided by an informant as the foundation supporting probable cause for a search warrant, the court considers the informant's veracity, reliability, and basis of knowledge as relevant factors to evaluate in assessing whether "given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." In addition, a law enforcement agent's opinion, based upon his professional expertise, that evidence of illegal activity will be found in the place to be searched, is entitled to consideration in our determination of whether probable cause existed at the time a warrant issued. The veracity of the informant need not be established, however, when there is sufficient independent information of the informant's statements. An officer is not required to corroborate information received from an informant through personal observation before determining there is probable cause for a search warrant; rather, the officer simply must have knowledge of other matters that reasonably corroborate the informant's statements.
Id. at 1205 (citations omitted).
Id. (citing $149,442.43 in U.S. Currency, 965 F.2d at 874 n. 3.
United States v. Avery, 295 F.3d 1158, 1167 (10th Cir.), cert. denied, 537 U.S. 1024 (2002) (citing Gates, 462 U.S. at 233 and United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir. 2001)).
Mathis, 357 F.3d at 1205 (quoting Gates, 462 U.S. at 238).
Id. (citations omitted).
United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000).
Mathis, 357 F.3d at 1204.
In this case, the affiant was Officer Othick, who has been a police officer with the Lawrence Police Department for ten years and who has participated in numerous investigations involving drug trafficking. Officer Othick stated that the information was communicated to him by the CI, whose reliability is attested to in the affidavit. Officer Othick stated that the CI had provided him with reliable corroborated information in the past, leading to narcotic arrests and the issuance of search warrants related to narcotic activity. The CI had purchased drugs at the apartment in the past from an individual named "Red." The CI reported that the white males who used to live at the apartment were "kicked out" by three black males known to the CI as Shawn, "J.R." and "G," and that Red had been staying at the apartment but left after the police stopped several cars after leaving the apartment. The CI identified defendant from a photo as Red. Officer Othick also corroborated some of the CI's information by talking with the apartment manager, who verified that she had not seen the white men for awhile, only black guys and young white girls; that the frequency of vehicle and pedestrian traffic had increased since the black males had been staying at the apartment; and that she "knew they were doing deals." On January 2, 2002, the CI told Officer Othick that a relative had gone to Red's apartment over the past weekend, where the relative obtained Ecstacy, "went crazy" and was arrested after a high-speed chase by the police.
The Court finds that the affidavit contained reliable information provided to law enforcement by the CI. The CI had been used by affiant in the past; the CI personally knew defendant and his residence; information provided by the CI was corroborated to an extent; and Othick has extensive law enforcement experience, including drug trafficking investigations.
In sum, under the totality of the circumstances, the Court finds that the magistrate had a substantial basis upon which to conclude that there was a fair probability that contraband or evidence of illegal activity would be present at the apartment at the time the search warrant was issued.
Good faith exception
The Court additionally believes that even in the event probable cause were lacking, the officers acted with "objective good faith" in obtaining the warrant from the magistrate and in executing the warrant within its scope, pursuant to United States v. Leon.
468 U.S. 897 (1984).
In Leon, the Supreme Court pronounced "that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." "The engine that drives Fourth Amendment protection is prevention and deterrence." Thus, "where the officer's conduct is objectively reasonable," that is, the officer acts with "objective good faith" in obtaining the warrant from a magistrate and in executing the warrant within its scope, "there is no police illegality and thus nothing to deter." It is the "magistrate's responsibility to determine whether the officer's allegations establish probable cause." In the ordinary case, the officer cannot be expected to question the magistrate's probable cause determination." Indeed, there is a "`presumption created in Leon that when an officer relies upon a warrant, the officer is acting in good faith.'"
Id.
Id. at 918.
United States v. McCarty, 82 F.3d 943, 949 (10th Cir.), cert. denied, 519 U.S. 903 (1996).
Leon, 468 U.S. at 919-921.
Id. at 921.
Id.
United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993) (quotation omitted).
In applying the Leon exception, the
`good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known the search was illegal despite the magistrate's authorization.' . . . To answer this `objectively ascertainable question,' we are to consider `all of the circumstances,' and assume that the executing `officers have a reasonable knowledge of what the law prohibits.'
United States v. Dahlman, 13 F.3d 1391, 1397 (10th Cir. 1993), cert. denied, 511 U.S. 1045 (1994) (quoting United States v. Leary, 846 F.2d 592, 607 (10th Cir. 1988) (quoting in turn Leon, 468 U.S. at 919)).
"[T]he reviewing court must examine `the text of the warrant and the affidavit to ascertain whether the agents might have reasonably presumed it to be valid.'" The determination is not merely whether the affidavits contain legally sufficient facts but whether the affidavits are devoid of factual support. "Thus, `it is only when [an officer's] reliance was wholly unwarranted that good faith is absent.'" The government, not the defendant, bears the burden of proving that its agents' reliance upon the warrant was objectively reasonable.
McKneely, 6 F.3d at 1454 (quotation omitted).
Id. (citing United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985)).
McKneely, 6 F.3d at 1454 (quoting Cardall, 773 F.2d at 1133)).
United States v. Jackson, 199 F. Supp.2d 1081, 1093 (D. Kan. 2002) (citing United States v. Cook, 854 F.2d 371, 373 (10th Cir. 1988).
The affidavit in the present case is not devoid of factual support, and the Court finds that the officers' reliance on the warrant was objectively reasonable.
2. Franks hearing
Defendant alleges that "the affiant . . . relied heavily on an unnamed informant but omitted critical negative information about the informant's unreliability, in violation of Franks v. Delaware." Defendant contends that the affiant failed to inform the magistrate judge who authorized the search warrant that the CI had a history of drug use as well as a criminal history and contemporary arrest for drug charges and endangering a child. Defendant argues that this is a material omission under Franks, thus requiring an evidentiary hearing.
"Under Franks, a hearing on the veracity of the affidavit supporting a warrant is required if the defendant makes a substantial showing that the affidavit contains intentional or reckless false statements and if the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause." "The standards of deliberate falsehood and reckless disregard set forth in Franks apply to material omissions, as well as affirmative falsehoods." If, after considering the evidence presented at a Franks hearing, the district court concludes by a preponderance of the evidence that the affidavit contains "intentional or reckless false statements," "then the district court must suppress the evidence obtained pursuant to the warrant." If, however, the district court concludes that the omitted information would not have altered the magistrate judge's decision to authorize the search, then the fruits of the challenged search need not be suppressed.
Avery, 295 F.3d at 1166-67 (quoting United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997) (citing Franks, 438 U.S. at 155-56)).
Id. (quoting United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000)).
Id.
Id.
Id.
Thus, the defendant may obtain an evidentiary hearing on the alleged omissions only if: 1) he proves the warrant affidavit contains material omissions or false information; 2) the false information or omissions were included in the affidavit intentionally or with reckless disregard for the truth; and 3) that the false or omitted information, had it been included in the affidavit, would have altered the magistrate's decision to authorize the search.
Id.
In this case, defendant speculates about the CI's identity and claims that Officer Othick omitted material information pertaining to her prior drug use and criminal history, in particular her alleged contemporaneous arrest for drug charges and endangering a child. Defendant contends that including this information in the affidavit would cast doubt upon the veracity of the CI's statements, which Officer Othick relied upon in demonstrating probable cause. However, the veracity of the CI's statements is not at issue here. Defendant's burden is to present substantial evidence of deliberate or reckless omissions or falsity on the part of Officer Othick, not the CI. Defendant's allegations concerning the CI's truthfulness or reliability are not relevant to the Court's Franks analysis. These allegations do not involve statements or actions of Officer Othick, and do not entitle defendant to a Franks hearing.
Moreover, even assuming that Officer Othick deliberately or recklessly omitted this information, the Court finds that it was not material to a probable cause finding. The Tenth Circuit recently noted that when evaluating the significance of information related to an informant's credibility, a court must "ask whether, assuming the [judge] had been apprized of the omitted information, the judge still `would have found probable cause[.]" "[Judges], courts have observed, often know, even without an explicit discussion of criminal history, that many confidential informants `suffer from general unsavory character' and may only be assisting police to avoid prosecution for their own crimes." Here, the affidavit asserted that the CI was reliable, that some of the information had been corroborated and that the apartment was a locus of drug trafficking activity. Given this, even if the affidavit had included the CI's criminal history or drug use, the magistrate still would have found probable cause to search the defendant's residence. Accordingly, there is no basis to suppress evidence under Franks.
Avery, 295 F.3d at 1168 (quoting Kennedy, 131 F.3d at 1377).
Id. (quoting United States v. Novaton, 271 F.3d 968, 985 (11th Cir. 2001), cert. denied, 535 U.S. 1120 (2002)).
3. Knock and announce
The primary focus of the evidentiary hearing was on defendant's allegation that officers violated 18 U.S.C. § 3109 and the Fourth Amendment by failing to give him a reasonable opportunity to voluntarily surrender his privacy when executing the search warrant on the apartment. The government alleges that officers did knock and announce prior to forcibly entering the apartment. Defendant alleges that he did not hear a knock or announcement prior to the officers breaking down the door with a battering ram.
See Wilson v. Arkansas, 514 U.S. 927, 931-36 (1995).
"Federal officials serving a warrant must knock and announce their presence and intent before searching a dwelling, unless notice is likely to result in the destruction of evidence or harm to the officers." Title 18, section 3109 provides:
United States v. Moland, 996 F.2d 259, 260 (10th Cir. 1993), cert. denied, 510 U.S. 1057 (1994) (citations omitted).
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.
"`The purpose of 18 U.S.C. § 3109 is to restrict the authority of the government to intrude upon the privacy of its citizens, and to protect law enforcement officers who might be mistaken as unlawful intruders.'" The amount of time that an officer must wait after knocking and announcing depends on the particular facts and circumstances of each case. "The reference point for the reasonableness determination is the amount of time between when the officers begin to announce their presence and when the officers hit the door with a battering ram or other implement which could destroy the door and allow them entry." Although no bright line rule for a minimum waiting period is appropriate, the Supreme Court has recently upheld waiting periods consisting of 10 to 15 seconds.
United States v. Knapp, 1 F.3d 1026, 1030 (10th Cir. 1993) (quoting United States v. Remigio, 767 F.2d 730, 732 (10th Cir.), cert. denied, 474 U.S. 1009 (1985)).
United States v. Banks, 124 S.Ct. 521, 524-25 (2003); United States v. Jenkins, 175 F.3d 1208, 1213 (10th Cir.), cert. denied, 528 U.S. 913 (1999).
United States v. McCloud, 127 F.3d 1284, 1288 n. 2 (10th Cir. 1997).
Banks, 124 S.Ct. at 527-28; see United States v. Myers, 106 F.3d 936 (10th Cir.), cert. denied 520 U.S. 1270 (1997) (upholding ten second wait).
Evidence presented at the hearing established the following regarding the execution of the search warrant at the apartment. Officer Leo Souders was a member of the "crisis response team" (CRT) that executed the warrant. The CRT executes a warrant if any weapons might be involved. In this case, Souders testified, the CRT was used because of the number of subjects inside the apartment as well as the suspected presence of weapons. Souders testified that he was the CRT member who held the ram and knocked and announced. Souders testified that the CRT lined up at the door, then he knocked and shouted "police department, search warrant." Souders testified he waited three seconds, then knocked and announced again. After three times, he could hear people inside, running around, but no one answered the door. Souders then forcibly entered the apartment, although he could not recall if he used the battering ram. After the officers entered the apartment, Souders testified that they found an occupant in a bathroom attempting to flush marijuana down the toilet. Souders testified that although he did not specifically recall the execution of this search warrant, it was his standard procedure to knock and announce three times at ten second intervals. He also testified that he has never been on a noknock execution of a warrant. Officer Darren Othick, the affiant for the search warrant, corroborated Souders's version of events, testifying that he heard the officer knock and announce prior to entry. The report of the execution of the search warrant, which was prepared by the CRT team leader Kirk Fuitz, does not mention that Officer Souders knocked and announced prior to entry, although it does confirm that the ram was used and caused damage to the door when the officers made forcible entry.
John Floyd, a private investigator for the Lawrence Police Department, testified that he interviewed Norris Hunter and Leroy Woodard, who were present at the apartment when the search warrant was executed. Floyd testified that Norris stated he heard a "series of loud noises," but not a knock or announce. Floyd testified that Woodard said he heard no knock, only the door being knocked down.
Defendant testified that he was upstairs talking to Woodard at the time the search warrant was executed, in the bedroom closest to the stairs. He was in a position to hear a knock or announcement, and no music or television was on that would interfere with his hearing. Defendant heard very loud knocks at the door, describing them as "big bangs, like a ram," followed by the officers storming into the apartment.
Defendant requests the Court to require the government to confer limited use immunity upon the two witnesses who were present in the apartment at the time the search warrant was executed. One man was released and the other arrested; neither was indicted in federal court. Defendant contends that both men are fearful that if they testify on defendant's behalf, "they will face recriminatory and retaliatory federal prosecution for their presence at a site where both drugs and guns were found." Neither man, however, has been called as a witness to testify, and they thus have not yet attempted to exercise their Fifth Amendment rights, although Norris indicated in his interview with Floyd that on advice of counsel, he did not want to testify on defendant's behalf.
"The power to apply for immunity . . . is the sole prerogative of the government being confined to the United States Attorney and his superior officers." Accordingly, courts have no inherent authority to grant a witness use immunity. The Tenth Circuit has limited the court's power to confer such immunity in extraordinary circumstances. If the government refuses to grant immunity, the court must consider whether the prosecutor's denial of immunity is a deliberate attempt to distort the factfinding process. If it is, then the court can consider forcing the government to choose between conferring immunity and granting an acquittal.
United States v. LaHue, 261 F.3d 993, 1014 (10th Cir. 2001), cert. denied 534 U.S. 1083 (2002) (quoting United States v. Hunter, 672 F.2d 815, 818 (10th Cir. 1982)).
United States v. Pickard, 278 F. Supp.2d 1217, 1246 (D. Kan. 2003) (citing LaHue, 261 F.3d at 1014).
LaHue, 261 F.3d at 1015.
Pickard, 278 F. Supp.2d at 1246 (citing LaHue, 261 F.3d at 1015).
Id.
The Court finds that this case does not present any circumstances that would warrant it granting immunity to defendant's proposed witnesses. Indeed, defendant concedes that he has not alleged that the prosecutor's denial of immunity is a deliberate attempt to distort the fact-finding process. Nor does defendant allege that the government has overreached by harassing, intimidating or forcing defendant's proposed witnesses to invoke the Fifth Amendment. As the government notes, by testifying about whether they heard any knock and announce prior to the officers' forced entry into the defendant's residence, the proposed witnesses would not necessarily be incriminating themselves as their presence in the apartment is already known to the government. In this case, there has been no determination as to the basis for the proposed witnesses' right to invoke the Fifth Amendment. The Court does not have power to grant use immunity to the witnesses. Defendant's suggestion to the contrary is without any support in the Tenth Circuit.
Thus, the Court determines whether the officers knocked and announced prior to forcibly entering the apartment in the same manner as it often decides issues of fact — by evaluating the credibility of the witnesses with conflicting testimony, Officer Souders and defendant. Based on the demeanor and substance of their testimony, the Court concludes that Souders's testimony is credible and defendant's testimony is not. Officer Souders's testimony was corroborated by Officer Othick, who testified that he heard the CRT knock and announce prior to entry. Moreover, one occupant was actively attempting to dispose of contraband when the officers entered the apartment, indicating that he heard the officers knock and announce. Although the record does not indicate who this was, since only the defendant, Norris Hunter and Leroy Woodard were present during the execution of the search warrant, the Court finds the proffered statements of Hunter and Woodard not credible. The Court accepts the officers' testimony that they did knock and announce their presence and authority before attempts to batter the door began.
IT IS THEREFORE ORDERED BY THE COURT that defendant's Motion to suppress (Doc. 16) and Motion for immunity for witnesses (Doc. 31) are DENIED.
IT IS SO ORDERED.